Administrative Court Munich, Judgment of February 13, 2020 – M 10 K 18.5802
If one wishes to obtain a residence permit, the Residence Act requires a certain degree of cooperation. This includes the obligation to report one’s residential address and any changes of residence. Failure to comply with this obligation makes it impossible to file a lawsuit, as the lawsuit does not meet the admissibility requirements due to the lack of an address.
In the present case, the plaintiff applied for a settlement permit, which was denied. Since the plaintiff did not provide a residential address at the time of filing the lawsuit, the lawsuit was dismissed as inadmissible.
Facts of the Case:
Serbian National Requested Extension of Residence Permit
The plaintiff sought the issuance of a residence permit from the defendant. The plaintiff is a Serbian national who was born in Germany in December 2000. On March 19, 2018, one of the plaintiff’s authorized representatives requested an extension of the residence permit. On July 31, 2018, the plaintiff’s father appeared before the defendant and requested a settlement permit for the plaintiff.
By notice dated November 16, 2018, the requests for extension and issuance of the residence permit from March 19, 2018, and July 31, 2018, were denied by the defendant (items 1 and 2 of the notice). The plaintiff was required to leave Germany by December 14, 2018, at the latest (item 3). In the case of culpable and significant non-compliance with the departure obligation, a ban on entry and residence for one year could be imposed (item 4). In the event of a failure to leave by the deadline, the plaintiff would be deported to Serbia or another willing state (item 5).
Residence Permit Denied and Deportation Threatened
On November 26, 2018, the plaintiff’s legal representatives filed a lawsuit with the Bavarian Administrative Court in Munich, requesting the annulment of the notice dated November 16, 2018, and additionally requesting the defendant to issue the requested residence permit. The lawsuit was dismissed.
In the complaint dated November 26, 2018, the plaintiff was designated with an address. Together with a letter dated March 25, 2019, the plaintiff’s legal representatives submitted a guardian’s certificate for the plaintiff, valid until August 31, 2019, which contained a new address for the plaintiff.
Plaintiff Eventually Untraceable
On February 7, 2020, the defendant reported that the plaintiff no longer resided at the last known address and had been listed as having moved to an unknown address in the register since August 29, 2019. The plaintiff’s father was reported to be in the jurisdiction of the district office … Later, the defendant stated that the plaintiff’s father was registered in …. The court then requested the plaintiff’s legal representatives to provide a current address where the plaintiff could be served. No such information was provided. In response to the court’s inquiry before the oral hearing, the plaintiff’s legal representatives instead stated that they did not know the plaintiff’s new address.
The court found that the plaintiff was currently not registered.
Judgment of the Administrative Court Munich
Lawsuit Dismissed as Inadmissible Due to Missing Address
The Administrative Court Munich dismissed the lawsuit as inadmissible. Despite the absence of the plaintiff and their representatives at the oral hearing, the court could decide on the lawsuit because the summons for the hearing, which was received by the plaintiff’s representatives on December 19, 2019, indicated this possibility (§ 102 Abs. 2 VwGO).
Das VG München wies die Klage als unzulässig ab.
The court stated that the lawsuit was inadmissible due to the lack of a serviceable address for the plaintiff.
According to § 82 Abs. 1 VwGO, the lawsuit must include, among other things, the designation of the plaintiff. This also requires providing a serviceable address for the plaintiff to carry out necessary service processes in the court proceedings (Hoppe in Eyermann, VwGO, 15th ed. 2019, § 82 Rn. 3 with further references). Since the admissibility requirements must be met at the time of the last oral hearing, the court must have a current serviceable address for the plaintiff at that time (cf. Schenke in Kopp/Schenke, VwGO, 24th ed. 2018, Intro § 40 Rn. 11). If the plaintiff changes their address during the proceedings, they are obliged to inform the court of the new address due to their duty to cooperate. This also applies if the plaintiff has a legal representative (Hoppe, op. cit.).
The court was not aware of a serviceable address. The plaintiff had been deregistered as having moved to an unknown address since August 29, 2019. Due to the plaintiff’s evasion, it was not expected that they would receive service at this (outdated) address. In particular, the defendant’s representative indicated before the oral hearing that the defendant had unsuccessfully attempted to contact the plaintiff at this address in another matter. The court did not have a new address for the plaintiff. The court was unable to determine the plaintiff’s current registration address in …, or …, or … within the Bavarian authorities‘ network Baybis. The defendant’s representative stated at the oral hearing on February 13, 2020, that the plaintiff still did not have a serviceable address or registration address. Therefore, the requirement for admissibility, the serviceable address, was missing.
Court Also Saw No Need for Legal Protection as the Plaintiff Had No Interest in a Decision
Additionally, the lawsuit lacked the need for legal protection.
According to established case law, only those who pursue a legally protectable interest are entitled to a court decision on the merits. This procedural requirement is a consequence of the general prohibition of abuse of rights and must be examined by the court ex officio at every stage of the proceedings. If it is absent, the procedural request must be dismissed as inadmissible (Sodan in ders./Ziekow, VwGO, 5th ed. 2018, § 42 Rn. 33; BVerfG, decision of October 27, 1998 – 2 BvR 2662/95 – juris Rn. 16 with further references; BayVGH, decision of December 10, 2001 – 21 B 00.31685 – juris Rn. 20). The required need for legal protection can also lapse during a court proceeding. The court may conclude the loss of a previously existing need for legal protection if the behavior of a party seeking protection suggests that they are no longer interested in the court’s decision (BVerfG, decision of October 27, 1998 – 2 BvR 2662/95 – juris Rn. 17; OVG NW, decision of February 1, 2002 – 21 A 1550/01.A – juris Rn. 5; BayVGH, decision of December 20, 1999 – 10 ZC 99.1418 – juris Rn. 2 f.).
It is recognized in case law that the evasion of foreigners seeking to secure further stay in Germany leads to the loss of the need for legal protection (cf. BayVGH, decision of June 6, 2006 – 24 CE 06.1102 – juris Rn. 13 ff.; decision of March 6, 2014 – 10 ZB 13.1862 – juris Rn. 4). In such a case, it could not be assumed that the affected person wanted to continue the proceedings. In this case, it was particularly noted that the plaintiff did not inform their representatives of the move. It was therefore evident that the plaintiff was not interested in receiving further updates about the status of the proceedings through the representatives. As the plaintiff also did not report a new address to the court, they were no longer reachable by the court, either directly or through their representatives. The fact that the court might have needed to obtain additional information from the parties or wanted to contact them for other reasons before preparing the oral hearing is also understandable to a layperson. Therefore, if there is no willingness to remain reachable during the proceedings, it cannot be assumed that there is a genuine interest in the outcome of the proceedings that would justify a court decision (cf. BayVGH, decision of December 10, 2001 – 21 B 00.31685 – juris Rn. 21 f.). Thus, there was also a lack of the admissibility requirement of the need for legal protection.
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